- Tsongas Litigation Consulting
LOUD AND PROUD — BUT NOT NECESSARILY RIGHT
I recently came across a couple of quotations that illustrate a problem we often see when watching jurors deliberate in mock trials (and presumably, in real trials):
“The best lack all conviction, while the worst are full of passionate intensity.” – William Butler Yates.
“The trouble with the world is that the stupid are cocksure, and the intelligent full of doubt.” – Bertrand Russell.
It’s a phenomena that most people experience at some point in their lives – a person who’s short on knowledge about a particular issue nonetheless expresses their opinion with special vigor, which often leads to their perspective being adopted due to the sheer quantity and volume of argument — and perhaps the desire for a little peace.
The same thing happens in jury deliberations. Jurors with complex reasoning skills and/or a background in the subject being discussed are often hesitant about sharing their opinion because they recognize that the information they have received on the topic precludes making a quick, definitive decision. On the other hand, a person with limited experience and simple reasoning abilities immediately feels confident that he or she “knows” what happened, and works to impose his or her perspective on everyone. If there’s no one with similar vehemence supporting the other side, a quick decision is often reached in the direction supported by the individual showing the most conviction.
In psychology, this phenomenon is known as the Dunning-Kruger effect. In a 1999 article in the Journal of Personality and Social Psychology, Justin Kruger and David Dunning found that, “People tend to hold overly favorable views of their abilities in many social and intellectual domains.” In other words, people think more highly than is accurate about their ability to address issues such as those brought up in a jury trial. The problem gets exacerbated because, “People who are unskilled in these domains suffer a dual burden: Not only do these people reach erroneous conclusions and make unfortunate choices, but their incompetence robs them of the metacognitive ability to realize it.” So not only do people make bad decisions, they also aren’t skilled enough to figure out that they are making mistakes.
This phenomenon is important to keep in mind when engaging in the jury selection process. When assessing possible jurors, each person’s attitudes and experiences should be explored and evaluated. In addition, the potential a juror has for leading deliberations also needs to be considered. A juror who appears to be slightly opposed to the interests of your client might be the first person you choose to strike if they exhibit the kind of confidence in their opinion, and willingness to share, that would peg them as a likely leader. This is in contrast to the person that has troublesome attitudes and experiences, but exhibits a reserved nature that signals doubt or reservations about their position, and an interest in staying in the background.
More than once I’ve heard an attorney speculate that a talkative but simple-minded person will wear out their welcome with the other jurors and be discounted. Sometimes this happens, but usually only when the person is also caustic or condescending in their interactions. If the person is merely self-assured and passionate, other jurors will tend to show some deference, or at least a willingness to go along with their more passionate perspective.
It is dangerous to assume that the “smart” juror is always the best choice for a case if that person is unlikely to take a stand in deliberations. Such a person might provide backing for a more vocal individual, but may not be willing to lead the decision-making. When assessing potential jurors, it’s important to keep in mind the decision-making dynamic that’s likely to take place in the jury room, and to exercise your peremptory strikes in a way that ensures both intelligent and passionate individuals are present to advocate for your side.